'Molecule by Molecule': How to Build Your Case Before the Court of Appeals

Aug. 6, 2014 – In this video, Chief Judge Richard S. Brown, Wisconsin Court of Appeals, Waukesha, talks about the importance of looking at as many cases as possible when presenting a case to the court of appeals. According to Brown, showing the differences between what the courts are doing will help the court decide what the law is.

Brown, sharing Oliver Wendell Holmes philosophy, said, “The law develops interestingly, molecule by molecule, and you get a bunch of molecules together and then you get a picture like a compound. The law is the same way.”

For example, Brown noted, “when a law school professor asked you to read a case, he wanted you to go beyond the case and to look at what all the issues were. Different people look at issues and decide cases differently. And so with the court of appeals, each panel will see something different.”

Brown urges lawyers to look closely at the unpublished decisions. “Looking at many cases, doesn’t confuse the lawyer,” he said, “In my view it helps the lawyer understand what the issues are and how many different ways a case could be decided. Bring that to your brief, show the differences between what the courts are doing, and hopefully there will be a published decision that will decide what the law is.

“There are cases in the public market, and many lawyers are reading those cases,” said Brown. “Some may differ in result and rationale, and it is incumbent on our court to find out what the landscape is and to write an opinion that resolves the issue. The supreme court, of course, has the opportunity to review and come up with a different opinion. But to me it’s a win/win for everybody when lawyers look at all these cases, because then they understand what all the issues are.”

About Brown’s Presentation

Brown presented “Back to the Future for the Wisconsin Court of Appeals” with Marquette University Law School Professor Daniel Blinka at the State Bar of Wisconsin PINNACLE® Litigation, Dispute Resolution, and Appellate Practice Institute in Milwaukee last May.